August 19, 1908: Municipal Journal and Engineer article. Stream Pollution Decisions. “In the State of New Jersey an award was recently made by Vice-Chancellor Stevens of the State Court of Chancery in the case of damages claimed to be caused by the pollution of the Passaic river, which introduced some novel methods which may probably be accepted as a precedent in other cases. The city of Paterson discharges sewage into the stream and, the Courts of the State having ruled that riparian owners below the outlets could not claim damages unless the stream received more sewage than it could dilute to an inoffensive condition, no action was taken at first. In time, however, it became evident that a nuisance was being created and complaints to the Paterson Board of Health, to the State Board of Health and to the Legislature having resulted in no abatement of the same, owners of about twenty of the riparian properties, each from 150 to 600 feet deep, brought a suit for injunction to restrain the city from damaging the property owners. The court ruled that an injunction which would prevent the city from using its sewers would work a far greater injury than that being suffered by the property owners, and ordered that instead the city should pay damages in amounts to be settled by a Court of Equity.
Action in such a court was accordingly brought and the city agreed that it would cease polluting the river in the manner complained of within five years from that time. The matter therefore resolved itself into a determination of the amount of damages inflicted upon the owners from the time the damage began until the time promised for its discontinuance. In fixing the first date a large amount of testimony, both expert and otherwise, was taken by the court; but the former, calculated to show what amount of sewage can be discharged into a stream without creating a nuisance, was apparently considered of minor importance by the court. The testimony of the property owners indicated that not until 1892 did the condition of the river have any appreciable influence on the use of the stream for fishing or bathing, but that from then on the evidence of sewage pollution became marked. This date was, accordingly, accepted by the court as that when the damage began, although the plaintiff endeavored to have it made earlier on the ground of the water being rendered unfit for drinking purposes as soon as sewage began to be discharged into it. This last contention was not admitted, however, as there was already such danger from other communities before the Passaic sewers were built.
The fixing of the amount of damages was even more complicated and difficult than determining their duration. The city contested that it was not responsible for contamination due to storm water from the streets, and the court admitted this to a degree only, holding that the city was not responsible for such storm water as flowed over the surface to the river, but was responsible for that discharged thereinto through the sewers. The contention of the city that it should not be held responsible for such injury as would have been done the river by a city of the same size as Paterson, but without sewers, was not admitted by the court. It was also contended that the industrial establishments of the city should stand their proportionate parts of whatever award was made, and although the court appeared to consider the city as responsible for about three-fourths of the total pollution and the industries for one-fourth, it does not appear to either admit or deny this contention, probably leaving this for settlement between such industries and the city.”
Commentary: This case shows the evolution of legal and scientific thought on river pollution after the turn of the 20thcentury. Note that the concept of dilution was losing favor as the impacts of sewage discharge into a watercourse were becoming better understood. Also it is interesting to note the discussion of stormwater and its impact on surface water quality. I believe that rulings such as this and new laws passed by the states were the defining events that led to an improvement in the water quality of rivers in the U.S. The judge in this case was Frederic W. Stevens who as vice chancellor of the Chancery Court of New Jersey was handling, at the same time, the case between Jersey City and the private water company that built the new water supply at Boonton Reservoir.
Dr. John L. Leal had interests in both cases. For ten years (1890 to 1899), he was the public health officer for Paterson, New Jersey. In his last few annual reports to the mayor, he urged that a solution to the water contamination from Paterson sewage discharges on the Passaic River be pursued. Ultimately, an intercepting sewer was built along the Passaic River, which collected all manner of domestic and industrial waste for discharge into New York Harbor. Eventually, a sewage treatment plant was built to treat the wastes. Leal’s involvement as an expert witness in the Jersey City lawsuit is covered in my book, The Chlorine Revolution.
Reference: McGuire, Michael J. 2013. The Chlorine Revolution: Water Disinfection and the Fight to Save Lives. Denver, CO:American Water Works Association.